Com. v. Merschat, J.

J-S33027-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JASON ANDREW MERSCHAT
Appellant No. 1479 WDA 2015
Appeal from the PCRA Order September 17, 2015
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0012256-2009
BEFORE: GANTMAN, P.J., OLSON and FITZGERALD,* JJ.
MEMORANDUM BY OLSON, J.: FILED JULY 25, 2016
Appellant, Jason Andrew Merschat, appeals from the order entered on
September 17, 2015 dismissing his first petition filed pursuant to the Post-
Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. § 9541-9546. We affirm.
The relevant factual background and procedural history of this case is
as follows. On March 19, 2009, a Pennsylvania State Police trooper pulled
Appellant over for speeding. Because Appellant exhibited signs of
intoxication, the trooper administered field sobriety tests, which Appellant
failed. Appellant was then transported to the hospital where a blood test
showed his blood alcohol concentration (“BAC”) was .195%.
On October 6, 2009, the Commonwealth charged Appellant via
criminal information with driving under the influence (“DUI”)–highest rate
* Former Justice specially assigned to the Superior Court
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(second offense),1 DUI–general impairment (first offense),2 and five
summary traffic offenses. Prior to trial, the Pennsylvania State Police erased
the video recording of the traffic stop. Because of this, Appellant moved to
suppress all evidence gained as a result of the stop, including Appellant’s
BAC test results, pursuant to Pennsylvania Rule of Criminal Procedure 573.
The trial court denied the suppression motion.
At trial, the Commonwealth called Jennifer Janssen (“Janssen”), a
toxicologist with the Allegheny County Medical Examiner’s Office. The
Commonwealth did not produce an expert report authored by Janssen and
Appellant’s trial counsel did not request production of such a report. On
August 3, 2010, Appellant was convicted of DUI–highest rate, DUI-general
impairment, and four summary offenses. On November 3, 2010, the trial
court sentenced Appellant to 90 to 180 days’ imprisonment followed by four
years’ probation for DUI–highest rate. Appellant’s DUI-general impairment
conviction merged with his DUI-highest rate conviction and he was
sentenced to no further penalty on the remaining charges.
This Court affirmed Appellant’s judgment of sentence and our Supreme
Court denied allowance of appeal. Commonwealth v. Merschat, 46 A.3d
811 (Pa. Super. 2012) (unpublished memorandum), appeal denied, 48 A.3d
1248 (Pa. 2012). In affirming Appellant’s judgment of sentence, this Court
1
75 Pa.C.S.A. § 3802(c).
2
75 Pa.C.S.A. § 3802(a)(1).
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found that Appellant waived his claim that the charges against him should
have been dismissed for a violation of Rule 573 because he only sought
suppression of the evidence and not dismissal of the charges. After our
Supreme Court denied allowance of appeal, the trial court ordered Appellant
to serve his sentence. Upon completion of his prison term, Appellant sought
early termination of his probation. The trial court denied the request and
Appellant appealed that decision.
While that appeal was pending, and within one year of his judgment of
sentence becoming final, Appellant filed a counseled PCRA petition. The
PCRA court dismissed the petition because the appeal of the early
termination of probation ruling was still pending. Appellant then appealed
the dismissal of his PCRA petition. Eventually, this Court consolidated those
appeals, affirmed the trial court’s denial of early termination of probation,
vacated the dismissal of the PCRA petition, and remanded for consideration
of the PCRA petition. Commonwealth v. Merschat, 107 A.3d 225, 2014
WL 10575178 (Pa. Super. 2014) (unpublished memorandum).
On remand, Appellant filed an amended PCRA petition. On August 14,
2015, the PCRA court issued notice of its intent to dismiss the petition
without an evidentiary hearing. See Pa.R.Crim.P. 907. On September 17,
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2015, the PCRA court dismissed Appellant’s petition. This timely appeal
followed.3
Appellant presents four issues for our review:
1. [Did the PCRA court err in dismissing Appellant’s claim that
counsel was ineffective for failing to preserve his Rule 573 issue
for review?
2. Did the PCRA court err in dismissing Appellant’s claim that
counsel was ineffective for failing to request an expert report
from the Commonwealth and failing to object to the expert’s
testimony?
3. Did the PCRA court err in dismissing Appellant’s claim that
counsel was ineffective for failing to call Janine Arvizu (“Arvizu”)
as an expert witness?
4. Did the trial court err in dismissing Appellant’s claim that his
sentence was illegal?]
See Appellant’s Brief at 1-2.
As most PCRA appeals involve mixed questions of fact and law, “[o]ur
standard of review of an order granting or denying relief under the PCRA
requires us to determine whether the decision of the PCRA court is
supported by the evidence of record and is free of legal error.”
Commonwealth v. Melendez-Negron, 123 A.3d 1087, 1090 (Pa. Super.
2015) (internal alteration, quotation marks, and citation omitted).
3
On October 5, 2015, the PCRA court ordered Appellant to file a concise
statement of errors complained of on appeal (“concise statement”). See
Pa.R.A.P. 1925(b). On October 8, 2015, Appellant filed his concise
statement. On November 6, 2015, the PCRA court issued its Rule 1925(a)
opinion. All issues raised on appeal were included in Appellant’s concise
statement.
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“The PCRA court’s findings will not be disturbed unless there is no support
for the findings in the certified record.” Commonwealth v. Ruiz, 131 A.3d
54, 57 (Pa. Super. 2015) (citation omitted).
Appellant’s first three claims relate to the purported ineffectiveness of
his counsel. A “defendant’s right to counsel guaranteed by the Sixth
Amendment to the United States Constitution and Article I, [Section] 9 of
the Pennsylvania Constitution is violated where counsel’s performance so
undermined the truth-determining process that no reliable adjudication of
guilt or innocence could have taken place.” Commonwealth v. Simpson,
66 A.3d 253, 260 (Pa. 2013) (internal quotation marks and citation
omitted). “Trial counsel is presumed to be effective[.]” Commonwealth v.
Perry, 128 A.3d 1285, 1289 (Pa. Super. 2015) (citation omitted).
In order to overcome the presumption that counsel was effective,
Appellant must establish that “(1) the underlying claim is of arguable merit;
(2) the particular course of conduct pursued by counsel did not have some
reasonable basis designed to effectuate his client’s interests; and (3) but for
counsel’s ineffectiveness, there is a reasonable probability that the outcome
of the proceedings would have been different.” Commonwealth v.
Buterbaugh, 91 A.3d 1247, 1255 (Pa. Super. 2014) (en banc), appeal
denied, 104 A.3d 1 (Pa. 2014) (internal alterations, quotation marks, and
citation omitted). “A claim of ineffectiveness will be denied if the
defendant’s evidence fails to meet any one of these prongs.”
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Commonwealth v. Oliver, 128 A.3d 1275, 1284 (Pa. Super. 2015)
(citation omitted). The burden of proving ineffectiveness is on the
petitioner. Commonwealth v. Slaughter, 120 A.3d 992 (Pa. 2015).
In his first issue, Appellant claims that counsel was ineffective for
failing to preserve his Rule 573 claim for direct appellate review. At the
suppression hearing, Appellant sought suppression of all evidence, including
his BAC test results, based upon the Commonwealth’s erasure of the dash
cam video of Appellant’s traffic’s stop. The trial court denied the motion to
suppress. On appeal, counsel argued that the trial court erred by not
dismissing the charges under Rule 573. A panel of this Court found that
Appellant waived review of his Rule 573 claim because counsel only sought
suppression of the evidence before the trial court whereas, on appeal before
this Court, counsel sought dismissal of the charges.
Appellant forwards a novel approach to demonstrate that his first claim
meets the criteria for proving ineffective assistance of counsel. Appellant
argues that, because counsel failed to follow appellate rules and waived
appellate review of his Rule 573 claim, the first two parts of the ineffective
assistance test, arguable merit and lack of a reasonable basis, are
established. Appellant concedes that he must satisfy the prejudice prong
since counsel’s conduct waived only some, but not all, appellate claims.
However, based on a merits analysis of his Rule 573 claim, Appellant asserts
there is a reasonable probability that he would have obtained appellate
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relief, if not for the actions of counsel. Consequently, Appellant asks for a
new trial with an order excluding all evidence gathered during the March 19,
2009 traffic stop.
Appellant misunderstands our precedent that addresses the
appropriate remedy made available where counsel’s failure to follow
appellate rules of procedure effectively denies a defendant his right to direct
review. Specifically, Appellant misunderstands this Court’s decisions in
Commonwealth v. Johnson, 889 A.2d 620 (Pa. Super. 2005) and
Commonwealth v. Franklin, 823 A.2d 906 (Pa. Super. 2003). In
Johnson and Franklin, the appellate “brief[s] on direct appeal w[ere] so
deficient under [Pennsylvania Rule of Appellate Procedure] 2119 that this
Court [was] unable to consider the merits of [the defendants’] claims.”
Johnson, 889 A.3d at 623. It was this waiver of all issues on appeal that
led this Court to find that the first two prongs of ineffectiveness were
satisfied.
In this case, Appellant’s counsel filed a brief which complied with Rule
2119 and this Court addressed the merits of Appellant’s other issue raised
on direct appeal. Thus, Johnson and Franklin are inapposite. Instead, this
case is governed by Commonwealth v. Grosella, 902 A.2d 1290 (Pa.
Super. 2006). In Grosella, this Court held that when counsel waives all but
one issue on direct appeal, the defendant must still plead and prove all three
prongs of an ineffective assistance of counsel claim. Id. at 1294. As
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counsel in this case preserved one issue for appellate review, Appellant must
satisfy all three prongs of the test for ineffective assistance of counsel.
Appellant’s first claim alleges counsel was ineffective for failing to
preserve his Rule 573 issue, which centered upon the Commonwealth’s
erasure and subsequent failure to produce dash cam video of Appellant’s
traffic stop. Appellant concedes, for purposes of legal analysis, that the
recording is potentially useful evidence. In cases where the prosecution fails
to produce potentially useful evidence, a due process violation occurs only
where the Commonwealth’s failure to preserve was done in bad faith,
regardless of the centrality of the evidence for the prosecution or defense.
Commonwealth v. Snyder, 963 A.2d 396, 404 (Pa. 2009). Bad faith is
shown where evidence is destroyed under circumstances “in which the police
themselves by their conduct indicate that the evidence could form a basis for
exonerating the defendant.” Arizona v. Youngblood, 488 U.S. 51, 58
(1988).
In Snyder, our Supreme Court held that it is very difficult to find bad
faith when evidence is destroyed pursuant to a standard policy. Snyder,
963 A.2d at 406, citing United States v. Beckstead, 500 F.3d 1154, 1159-
1160 (10th Cir. 2007). In this case, the Commonwealth erased the video
recording of Appellant’s traffic stop in accordance with a standard policy.
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See N.T., 4/7/10, at 74-77.4 Appellant points to no authority and offers no
reasons why the destruction of the recording in this case falls into the
narrow class of cases where bad faith is shown despite the destruction of
evidence pursuant to standard policy. As such, Appellant failed to plead and
prove that his underlying claim is of arguable merit.5
In his second issue, Appellant argues that trial counsel was ineffective
for failing to request an expert report from Janssen. Appellant argues that,
if counsel had requested an expert report, counsel could have limited
Janssen’s testimony to the alcohol content in Appellant’s blood and excluded
testimony regarding the effect of alcohol in Appellant’s blood stream.
Second, Appellant argues that trial counsel was unaware of Janssen’s
qualifications and therefore could not challenge her on cross-examination.
Both of these arguments are without merit.
As to limiting Janssen’s testimony, Appellant “does not even attempt
to offer any legal theories under which [Janssen’s testimony] could have
4
Specifically, every camera has two tapes – one located in the camera and
one located in storage. After the tape in the camera is full (which occurs
after it is used for approximately 30 days), the tape in storage is erased and
the two tapes are switched. Thus, depending upon when in the cycle the
recording is made, recordings are destroyed between 30-60 days after they
are made unless a request to preserve the recording is made.
In this case, the preliminary hearing was delayed for several months. By
the time the preliminary hearing was held, the tape had been erased.
5
For the same reasons, Appellant is unable to show any prejudice because
even if counsel would have preserved the issue, this Court would have
affirmed the trial court’s ruling.
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been [limited]. Therefore, this claim merits no relief.” Commonwealth v.
Copenhafer, 719 A.2d 242, 256 (Pa. 1998). Furthermore, our review of
the record indicates that Janssen’s testimony would have been admissible
even if Appellant’s trial counsel requested an expert report. This Court
routinely accepts the expert testimony of toxicologists as it relates to the
impact a given amount of alcohol has on an individual. E.g., Braun v.
Target Corp., 983 A.2d 752, 760-761 (Pa. Super. 2009), appeal denied,
987 A.2d 158 (Pa. 2009) (collecting cases). Janssen testified that, as part of
her employment, she “interpret[s what] the significance of the alcohol
finding . . . is in a particular specimen.” N.T., 7/30/10, at 48. Thus, she
was qualified to offer such an expert opinion and any attempt to limit such
testimony would have been rejected.
As to Janssen’s qualification’s, an expert report is not the only means
to learn about an expert’s qualifications. In this case, Janssen testified on
direct examination to her qualifications. See N.T., 7/30/10, at 46-48.
Appellant’s trial counsel could have cross-examined Janssen about her
qualifications based upon these disclosures at trial. Therefore, Appellant’s
claim related to the lack of an expert report from Janssen lacks arguable
merit and Appellant is not entitled to relief on his second ineffectiveness
claim.
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In his third issue, Appellant argues that trial counsel was ineffective for
failing to call Arvizu as an expert witness to rebut Janssen’s testimony.6 As
this Court has explained
To establish ineffectiveness for failure to present a witness,
Appellant must establish that: (1) the witness existed; (2) the
witness was available; (3) counsel was informed of the existence
of the witness or counsel should otherwise have known of [her];
(4) the witness was prepared to cooperate and testify for
Appellant at trial; and (5) the absence of the testimony
prejudiced Appellant so as to deny him a fair trial. A defendant
must establish prejudice by demonstrating that he was denied a
fair trial because of the absence of the testimony of the
proposed witness. Further, ineffectiveness for failing to call a
witness will not be found where a defendant fails to provide
affidavits from the alleged witnesses indicating availability and
willingness to cooperate with the defense.
In re A.J., 829 A.2d 312, 316 (Pa. Super. 2003), appeal denied, 842 A.2d
405 (Pa. 2003) (citation omitted).
In this case, Arvizu’s affidavit did not state that she was available and
willing to cooperate with the defense at the time of Appellant’s trial. See
Appellant’s Amended PCRA Petition, 1/2/15, at Exhibit A. As such, Appellant
is not entitled to relief on his third ineffectiveness claim.
In his final issue, Appellant argues that his sentence was illegal. He
argues that the maximum sentence for a second DUI-highest rate conviction
is 60 days’ imprisonment. The legality of a sentence is a pure question of
6
Arvizu is a chemist and lab auditor who allegedly reviewed the practices of
the lab that performed the BAC test on Appellant’s blood and, based on said
review, believes the lab may have deficiencies which could render the BAC
results unreliable.
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law, therefore our standard of review is de novo and our scope of review is
plenary. Commonwealth v. Cardwell, 105 A.3d 748, 750 (Pa. Super.
2014), appeal denied, 121 A.3d 494 (Pa. 2015) (citation omitted).
Although Act 189 of 2014 amended section 3803(a), this case is
governed by the statute at the time Appellant was sentenced. See
Commonwealth v. Grow, 122 A.3d 425, 427 n.3 (Pa. Super. 2015) (en
banc), superseded by statute on other grounds, 2014 P.L. 2905. Thus all of
our references to the relevant statutes are to those in effect at the time of
Appellant’s sentencing. At that time, section 3803 provided, in relevant
part:
(a) Basic offenses.—Notwithstanding the provisions of subsection
(b):
(1) An individual who violates section 3802(a) (relating to
driving under influence of alcohol or controlled substance) and
has no more than one prior offense commits a misdemeanor for
which the individual may be sentenced to a term of
imprisonment of not more than six months and to pay a fine
under section 3804 (relating to penalties).
***
(b) Other offenses.—
***
(4) An individual who violates section 3802(a)(1) where the
individual refused testing of blood or breath, or who violates
section 3802(c) or (d) and who has one or more prior offenses
commits a misdemeanor of the first degree.
75 Pa.C.S.A. § 3803 (Purdon’s 2009).
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Appellant’s argument is based upon a misunderstanding of this Court’s
decisions in Grow and Commonwealth v. Musau, 69 A.3d 754 (Pa. Super.
2013), superseded by statute, 2014 P.L. 2905, interpreting section 3803. In
Musau and Grow, the defendants were convicted of DUI-general
impairment with refusal to consent to chemical testing. The defendants in
both cases argued that the maximum sentence for a second DUI-general
impairment with refusal to consent to chemical testing conviction was six
months’ imprisonment. The Commonwealth, on the other hand, argued that
the maximum sentence for a second DUI-general impairment with refusal to
consent to chemical testing conviction was five years’ imprisonment. The
difference arose because of a conflict between sections 3803(a) and
3803(b)(4). Specifically, section 3803(a) provided that the maximum
penalty for a first or second DUI-general impairment conviction was six
months’ imprisonment. On the other hand, section 3803(b)(4) provides that
a second or subsequent DUI-general impairment with refusal to consent to
chemical testing offense is a first-degree misdemeanor, which is punishable
by up to five years’ imprisonment. In addition, section 3803(b)(4) provides
that second and subsequent DUI-highest rate and DUI-controlled substances
convictions shall also constitute first-degree misdemeanors. In Musau and
Grow, this Court held that the “notwithstanding” language of section
3803(a) meant that the six month maximum punishment provided in section
3803(a) controlled what the maximum penalty for a second DUI-general
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impairment with refusal to consent to chemical testing conviction was.
Grow, 122 A.3d at 428.
Neither Musau nor Grow, nor any other of the litany of cases cited by
Appellant,7 addressed a DUI-highest rate conviction, the relevant section in
this appeal. Those cases did not address DUI-highest rate because section
3803(a) only addressed DUI-general impairment convictions. Only section
3803(b)(4) addresses second DUI-highest rate convictions. Section
3803(b)(4) provides that a second DUI-highest rate conviction is a first-
degree misdemeanor, which carries a five-year maximum sentence. 18
Pa.C.S.A. § 106(b)(6), (e). Although this Court’s language in Musau may
not have been precise,8 a complete review of Musau and Grow reveals that
the passage relied upon by Appellant only referred to DUI-general
impairment convictions. As such, Appellant’s sentence was legal.
Order affirmed.
7
Appellant cites Commonwealth v. Schrock, 118 A.3d 459, 2015 Pa.
Super. Unpub. LEXIS 3331 (Pa. Super. 2015) (unpublished memorandum),
in support of his argument that section 3803(a) applies to convictions other
than DUI-general impairment, i.e., convictions under section 3802(d)(2).
The defendant in Schrock, however, was only convicted of DUI-general
impairment and the section 3802(d)(2) charge was withdrawn. Moreover,
we note that this Court’s operating procedures provide that unpublished
memoranda decisions “shall not be relied upon or cited…by a party in any
other action or proceeding”. Operating Procedures of the Superior Court §
65.37A.
8
Specifically, this Court stated that “the maximum sentence for a first or
second DUI conviction is six months’ imprisonment.” Musau, 69 A.3d at
758.
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Gantman, P.J. joins the memorandum.
Fitzgerald, J. concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/25/2016
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